New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

ROBERT FRED JONES, JR., ET AL. v. VICK IDLES
Court:TSC
Attorneys:
Jerry Shattuck, Clinton, Tennessee, for the appellant, Vick Idles.
Terrill L. Adkins, Knoxville, Tennessee, for the appellees, Robert
Fred Jones and Virginia Leigh Jones.
Judge: ANDERSON
First Paragraph:
We granted this appeal to determine whether the chancellor correctly
granted a new trial after finding that the jury's allocation of ninety
percent of the fault to the plaintiffs and ten percent of the fault to
the defendant was against the weight of the evidence and that the
evidence supported "a defense verdict for both sides." A majority of
the Court of Appeals concluded that the chancellor correctly granted a
new trial on both the plaintiffs' claim and the defendant's
counterclaim and affirmed the judgment of the trial court. After
reviewing the record and applicable authority, we agree with the Court
of Appeals and hold that the chancellor properly granted a new trial
after finding that the jury's allocation of fault was against the
weight of the evidence in his role as the thirteenth juror.
Accordingly, we affirm the judgment.
http://www.tba.org/tba_files/TSC/jonesrobert.wpd

STATE OF TENNESSEE v. ROBERT TAIT
Court:TSC
Attorneys:
N. Craig Brigtsen, III, and Terry D. Smart, Memphis, Tennessee, for
the appellant, Robert Tait.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; and
Stephen P. Jones, Assistant District Attorney General, for the
appellee, the State of Tennessee.
Judge: BIRCH
First Paragraph:
We granted this interlocutory appeal pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure to determine whether, in a
prosecution commenced by an arrest warrant for driving under the
influence of an intoxicant, the resulting indictment may charge the
defendant for offenses that can be inferred from the arrest warrant.
The arrest warrant charged the appellant, Robert Tait, with driving
under the influence of an intoxicant, and the grand jury indicted him
for that offense (count one) and for driving with a blood-alcohol
concentration of .10 percent or more (count two). The trial court
dismissed the second count, finding that it described a new and
additional charge and was, therefore, barred by the applicable
one-year statute of limitations because its prosecution had been
commenced more than one year after the conduct occurred. The Court of
Criminal Appeals reversed, concluding that the second count merely
constituted an alternative theory for conviction and did not charge an
offense distinct from that for which the appellant was initially
charged. After reviewing the record and controlling legal authority,
we hold that the language of the warrant sufficiently tolled the
limitations period for count two. Therefore, we affirm the holding of
the Court of Criminal Appeals and remand this case to the trial court
for further proceedings.
http://www.tba.org/tba_files/TSC/taitrobert.wpd

STATE OF TENNESSEE v. JEREMY WHITE
Court:TSC
Attorneys:
Mark S. McDaniel, Jef Feibelman, and Susan M. Clark, Memphis,
Tennessee, for the appellant, Jeremy White.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Lee Coffee and
Alanda Dwyer, Assistant District Attorneys General, for the appellee,
State of Tennessee.
Judge: ANDERSON
First Paragraph:
We granted review to determine whether the Court of Criminal Appeals
erred in concluding that defense counsel's dual roles as part-time
assistant district attorney and defense counsel in this case created a
conflict of interest requiring removal of counsel. The trial court
found that defense counsel must be disqualified under the facts of
this case because a "perceived" conflict of interest existed that
could not be waived by the defendant. The Court of Criminal Appeals
affirmed on the ground that an actual conflict of interest existed.
After reviewing the record, we conclude that counsel's dual roles as
prosecutor and defense counsel created an actual conflict of interest
that required disqualification. Accordingly, the judgment of the
Court of Criminal Appeals is affirmed.
http://www.tba.org/tba_files/TSC/whitejeremy.wpd

WANDA HOBSON v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE
Court:TCA
Attorneys:
Michael H. Sneed, Nashville, Tennessee, for the appellant, Wanda
Hobson.
Ann O'Connell, Kellie Haas and John L. Kennedy, Nashville, Tennessee,
for the appellee, The Metropolitan Government of Nashville and
Davidson County, Tennessee.
Judge: FARMER
First Paragraph:
Plaintiff initiated this action alleging breach of contract,
interference with contractual relations, and pursuant to the
Governmental Tort Liability Act. The trial court dismissed the action
for failure to state a claim. We affirm.
http://www.tba.org/tba_files/TCA/hobsonwanda.wpd

SHIRLEY P. SECREST v. TERA C. HAYNES, ET AL.
Court:TCA
Attorneys:
C. Tim Tisher, Columbia, Tennessee, for the Appellant Shirley P.
Secrest.
Edwin Z. Kelly, Jr., Jasper, Tennessee, for the Appellees Tera C.
Haynes and Terry Haynes.
David W. Carter, Columbia, Tennessee, for the Appellee Kenneth W.
Smith.
Judge: SWINEY
First Paragraph:
The appeal involves a claim for property damages by Shirley Secrest
("Secrest" or "Plaintiff") against Kenneth Smith and Tera Haynes, who
were driving separate vehicles involved in a multi- vehicle accident
with a vehicle owned by Plaintiff. After a trial, the Trial Court
concluded that while the driver of Plaintiff's vehicle was not at
fault and that either one or both of the Defendants were at fault, the
complaint nevertheless should be dismissed because: (1) Plaintiff
failed to prove by a preponderance of the evidence that Kenneth Smith
was negligent; and (2) Plaintiff failed to prove by a preponderance of
the evidence that Tera Haynes was negligent. Plaintiff appeals,
claiming the Trial Court was required to allocate fault to Smith
and/or Haynes once it concluded that Plaintiff was not at fault and
either one or both of the Defendants were at fault. We affirm.
http://www.tba.org/tba_files/TCA/secrests.wpd

STATE OF TENNESSEE v. JAMES RUBEN CONYERS
Court:TCCA
Attorneys:
William B. "Jake" Lockert, III, and Wade Bobo, Ashland City,
Tennessee, for the appellant, James Ruben Conyers.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Carey Thompson, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: OGLE
First Paragraph:
The appellant, James Ruben Conyers, was convicted by a jury in the
Houston County Circuit Court of especially aggravated burglary, a
Class B felony; especially aggravated robbery, a Class A felony; and
attempted first degree murder, a Class A felony. Following a
sentencing hearing, the trial court sentenced the appellant to an
effective sentence of eighty years incarceration in the Tennessee
Department of Correction. On appeal, the appellant raises numerous
issues relating to the sufficiency of the evidence, the admission of
evidence, the sufficiency of the indictment, the jury instructions,
and sentencing. Upon review of the record and the parties' briefs, we
find no merit to the appellant's contentions. However, we recognize
as plain error that the appellant's conviction for especially
aggravated burglary was prohibited under Tennessee Code Annotated
section 39-14- 404(d) (1997). Accordingly, we modify the conviction
to aggravated burglary and reduce the appellant's sentence for this
conviction to ten years incarceration, for a total effective sentence
of eighty years.
http://www.tba.org/tba_files/TCCA/conyersjr.wpd

STATE OF TENNESSEE v. SIPHACHANH SIPPY SYHALATH
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee and Richard J. Brodhead,
Lebanon, Tennessee (on appeal), G. Frank Lannom, Lebanon Tennessee (at
trial), for the appellant, Siphachanh Sippy Syhalath.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
Howard Lee Chambers, District Attorney General Pro- tempore; and
Douglas Hall, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Wilson County Grand Jury indicted the Defendant for one count of
especially aggravated robbery, two counts of aggravated robbery, and
two counts of aggravated assault. Following the trial court's denial
of the Defendant's Motion to Suppress evidence, the Defendant pled
guilty, reserving a certified question of law. The issues before us
on appeal are: (1) whether the certified question of law is
dispositive of this case; and, if so (2) whether police had reasonable
suspicion to stop the Defendant's vehicle; and (3) whether the police
had probable cause to take the Defendant into custody and to search
the Defendant's vehicle. Finding no error, we affirm the judgment of
the trial court.
http://www.tba.org/tba_files/TCCA/syhalathss.wpd

STATE OF TENNESSEE v. RALPH LAMAR WILLIAMS ALIAS RALPH DANIELS
Court:TCCA
Attorneys:
David R. Barrow, Chattanooga, Tennessee, for the appellant, Ralph
Lamar Williams alias Ralph Daniels.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Lila Jayne Statom, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
A Hamilton County Criminal Court jury convicted the defendant, Ralph
Lamar Williams, of four counts of aggravated rape, a Class A felony;
one count of rape, a Class B felony; and one count of aggravated
kidnapping, a Class B felony. The trial court sentenced him as a
violent offender to life without parole for each conviction. The
defendant appeals, claiming that the prosecutor improperly suggested
to the jury during closing argument that the defense bore the burden
of establishing the defendant's innocence. We affirm the judgments of
the trial court.
http://www.tba.org/tba_files/TCCA/williamsralphlamar.wpd

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